All disputes that can be the subject of a settlement agreement are eligible for mediation. Therefore, gambling debts, money laundering, tax fraud, etc. cannot be the subject of a mediation.

Other reasons why a particular dispute is not (yet) capable of being mediated relate to the intensity of the conflict or to emotional aspects.

A mediator will also refuse a mediation or, if it is already underway, terminate it, if they find that it is being misused to distract from its intended purpose: for example, a party is only sitting at the mediation table to extract information from the other party (fishing), a party only wants to start a mediation process to cause delay, …

Communication is central to mediation. It is therefore important that each party can actively express themselves, in a language in which they feel comfortable. If this language is not the same for all parties, it is certainly possible to make the necessary arrangements and reach practical agreements to make the mediation process more language-friendly.

Mediators usually charge their fees based on an hourly rate and their administrative costs may be calculated as a percentage of their hourly rate. Mediators’ hourly rates may vary according to the nature, complexity and size of the dispute, and the financial capacity of the parties. Success fees or increased hourly rates dependent on the successful conclusion of a mediation agreement are rather exceptional but could, in principle, be agreed upon. Specific costs for such expenses as venue hire or catering are charged in addition.

Usually, the mediator’s costs are shared equally between the parties, but it is possible to depart from this principle if, after consultation between the parties and their advisers, this is agreed.

Each party will bear the costs of its own advisers or experts, unless expressly agreed otherwise during the mediation.

Given the necessary preparation, the overall cost of a mediation should not be underestimated. On the other hand, a successful mediation avoids high court and other costs and allows parties to refocus on their core business including renewed cooperation in some cases.

In principle, the mediator is paid by the parties involved in equal shares. It happens that other arrangements are made in this regard, but this is rather exceptional.

The duration of a mediation depends on the complexity of the dispute, the degree of escalation and the availability of the parties and their advisers, among other factors.

Speed of resolution is one of the advantages of mediation. MAD therefore focuses on efficient organisation and timing, adapted to the dispute in question.

In the words of Benjamin Franklin, "Failing to prepare is preparing to fail".

A lot of time therefore needs to be invested in preparing for a negotiation: a thorough analysis of interests, mapping out the parties' alternatives, identifying strengths and weaknesses so as to then work on them, ...

On average, five to seven times more time is spent on preparation than on the actual negotiation.

The setting for negotiations, reconciliations and mediations should preferably make the participants feel good. A neutral, calming and inspiring location will undoubtedly increase the chances of success.

According to Roger FISHER and Daniel SHAPIRO ("Beyond Reason - Using emotions as you negotiate" - 2005, Harvard Negotiation Project), positive emotions can help flesh out everyone's interests and improve the bond between the people involved.

Mediation usually takes place at the mediator’s offices or in specifically rented premises (hotels, business centres, etc.) rather than at one of the parties’ premises but there is cast-iron rule, provided that all the parties agree.

A neutral, calming and inspiring location will undoubtedly increase the chances of success.

According to Roger FISHER and Daniel SHAPIRO ("Beyond Reason - Using emotions as you negotiate" - 2005, Harvard Negotiation Project), positive emotions can help flesh out everyone's interests and improve the bond between the people involved.

An adviser's role is crucial in guiding their client during a mediation. A professional adviser prepares their client for the mediation process and generally ensures an open "mindset" at the start of the mediation. Later, they can help to generate options and test them against reality when choosing agreed solutions. Finally, an adviser will contribute to the correct formalisation of the mediation agreement, whether or not that is done in collaboration with the mediator. In MAD’s view, therefore, an adviser can be an important sounding board for their client and an active facilitator of the mediation process. But the parties remain completely free to mediate without advisers.

From the first contact you make with the mediator, it is useful to provide a brief summary of the dispute and the mediator may well request you to do so. Mention the full identity of all the parties and any urgency. In this way, the mediator can very quickly assess whether the mediation poses any conflicts of interest and if the dispute is capable of being mediated. Assuming the mediation can go ahead, the mediator can immediately propose a set of dates and forward their mediation protocol.

The essence of a mediation is that whoever holds the decision-making power regarding the matters in dispute should be personally present during the mediation sessions. The mediator will therefore carefully check the parties' power to decide.

Very exceptionally, this rule of practice can be deviated from, and a party can be represented by a proxy provided that the proxy’s powers of representation and decision are clear.

This is not strictly necessary. The parties may, in consultation with the mediator whose appointment they have requested, decide to sign a mediation protocol and start mediation immediately. The parties will inform the Court Registry of this immediately.

Unless the parties agree otherwise, all the documents and communications exchanged during the mediation are subject to the confidentiality of the mediation.

The mediation protocol itself is in principle not confidential, but the parties may agree to make it confidential anyway. Where appropriate, the mediator will point out the possible disadvantages of doing so.

The parties may also agree to subject certain documents already exchanged before the mediation to confidentiality. The mediator will consider the extent to which this is acceptable.

The signed mediation agreement or the document in which the mediator establishes that the mediation did not result in an agreement is not confidential, unless the parties agree otherwise.

The mediator has professional secrecy.

The confidentiality of mediation is regulated in detail in Article 1728 of the Judicial Code.

Mediation is all about efficient communication. It works at its best when all parties meet physically.

In an international context, it is sometimes more efficient for certain sessions (for example a preliminary direction meeting or a "legal table" between the mediator and legal advisers ...) to be conducted by videoconference.

Where circumstances make it necessary, mediation can sometimes take place entirely online.

Mediation can be applied to cross-border disputes, where not all parties are domiciled in the same country.

However, the mediation protocol should pay special attention to certain aspects, such as the possibility of obtaining judicial approval of any agreement that is reached and the suspension of limitation periods. These aspects may be regulated differently in the respective national laws of the parties involved.

National regulations in European Union member states tend to be better aligned, as member states have had to implement an EU Directive on mediation in civil and commercial matters. (European Parliament and Council Directive 2008/52/EC of 21 May 2008 on certain aspects of mediation in civil and commercial matters.)

Where the degree of escalation is too high
Some conflicts have escalated to the point where the parties are only interested in harming each other as much as possible (even if this is entirely to their own detriment). If the only ambition of the parties is "going down together” the mediator may indicate that the conflict is not (yet) capable of being mediated. In such situations, the mediator may still be able to get to work in a "shuttle mediation", where he or she alternates between talking to each party individually and, helps the parties de-escalate the tensions so that the conflict can be mediated.

Where the degree of escalation is too low
In such cases, there is some tension between the parties that makes cooperation sub-optimal, but this seems manageable. Mediation to arrive at a written settlement agreement may be premature in such a situation, but in a " proactive mediation" a mediator could clarify communication between the parties so that arrangements can be made and evaluated in follow-up talks.

Naturally, going through a conflict has emotional aspects. The process and the subject may evidence different emotions. If dealing with those emotions has not yet progressed sufficiently a party may be unable to think of solutions and make decisions. In such a case, the mediator may indicate that the conflict is not (yet) ready for mediation.